Section 106 Obligations

Planning Obligations

Planning obligations, often referred to as Section 106 agreements, are a key mechanism in the planning system for making development acceptable which would otherwise be unacceptable in planning terms. They are used to achieve planning objectives, lessen the impact of development and/or compensate for loss or damage caused by development. Whilst planning obligations are unlikely to be required for all kinds of development they can nevertheless be requested on a development of any size or type.

Legally a planning obligation must be:

• Necessary to make the proposed development acceptable in planning terms;
• Directly relate to the proposed development; and
• Fairly and reasonably relate in scale and kind to the proposed development.

A strong emphasis is now placed on the increasing importance of pre-application discussions and front-loading the planning process as a method of creating a faster, more responsive and transparent planning system.  The process of negotiating planning obligations should therefore be done at the earliest opportunity and in an open, fair and reasonable manner.

It is important to note that where a proposal requires a planning obligation, planning permission will not be granted until the Council receives a planning obligation completed to its satisfaction. It is also important to note that the Council will seek to ensure that its reasonable costs associated with either production of or checking of S106 agreements are met by the applicant or proposer, this is usually done through an undertaking for costs secured between the legal representatives acting for the Council and those acting for the applicant or proposer.

Whilst planning obligations are private contracts negotiated between the landowner or developer and the Council, their content is shaped by the planning policies which inform them.

Monitoring of S106 Planning Obligations

Planning obligations are rigorously monitored by the Council.

Once a planning obligation is completed, it is recorded on a database in order to facilitate the monitoring process. It is vital that all parties understand their obligations so that they know what is required of them and when.

Should you have any questions relating to your obligations, please email the S106 team.

If a breach of an obligation occurs, the relevant party will be given an opportunity to remedy the breach, failing which, the matter will be investigated and, if not resolved, may be enforced against.

Boston Borough Council's Infrastructure Funding Statement (IFS)

The latest Government Community Infrastructure Levy Regulations came into force on 1 September 2019. These new regulations introduce the requirement for the Council to publish an Infrastructure Funding Statement (IFS) annually by 31 December.  For details of these new Regulations see Schedule 2 to the Community Infrastructure Levy regulations 2010.

The IFS sets out how developer contributions have been and will be used to provide infrastructure within the Borough. This funding has been secured through planning permissions using the policies of the South East Lincolnshire Local Plan (SELLP) which was adopted in March 2019 and the Boston Local Plan for historic agreements.

The IFS covers the period 1 April to 31 March for each financial year and reports on the infrastructure projects or types of infrastructure that the Borough Council intends to fund either wholly or partly using planning obligations. If you have any queries relating to any IFS please email the S106 team.

S106 Planning Obligations Monitoring Fees

The monitoring of Section 106 planning obligations is costly and requires significant resource.

Following the introduction in September 2019 of the Community Infrastructure Levy (Amendment) (England) (No 2) Regulations 2019, councils can now charge monitoring fees in relation to s106 agreements, providing they are proportionate, reasonable and reflect the actual cost of monitoring.

A reduction to the monitoring fee of 50% will be applied for all new agreements where:

• The scheme would only deliver Affordable Housing; and
• There are no other obligation requirements; and
• The scheme is brought forward by a Registered Provider or where evidence is provided that demonstrates one is on-board to deliver the scheme.

NB The above fees do not include any legal charges that may be incurred and the cost of any application to modify or vary a planning obligation.

Monitoring fees are payable to the Council within a period as specified within the agreement, usually this is within 14 days of completion of the legal agreement, and such fees are non-refundable.

Confirmation of S106 Planning Obligation Enquiries

A party (such as a future owner of a property) may seek confirmation that a S106 agreement associated with the land in question has been complied with, or the obligations discharged. Such requests are most commonly made during land transactions by solicitors.

The Council seeks to recoup the costs associated with undertaking investigations associated with providing this information. As such, the fee charges for confirmation of compliance with S106 planning obligations enquiries is detailed below:

• Confirmation of compliance with section 106 planning obligations (desktop assessment): £110 including VAT
• Where a compliance check is required for subsequent properties, within the same development; £27.50 including VAT 
• If a site visit is required, an additional charge of £116.50 including VAT is payable
• This is a desktop check of the Council's records. If the clause in the agreement requires something to be undertaken on site it would be necessary to undertake a site visit for which there will be an additional charge.

Use this service if you require confirmation that the clauses of the agreement have been complied with.